United States District Court, S.D. Georgia, Waycross Division
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
JAMES E. GRAHAM, Magistrate Judge.
Movant Ricky Smith ("Movant"), who is currently incarcerated at the Federal Correctional Institution in Edgefield, South Carolina, filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. The Government filed a Response. The undersigned appointed counsel for Movant and conducted a hearing on his motion on April 22, 2014. Movant, through counsel, filed a post-hearing brief, as did the Government. For the reasons which follow, Movant's motion should be DENIED.
STATEMENT OF THE CASE
Movant was convicted, after pleading guilty, of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Movant was sentenced as an armed career criminal based on three (3) prior convictions he obtained in state court. The Honorable William T. Moore, Jr., sentenced Movant to 170 months' imprisonment, and judgment was entered on September 1, 2011. Movant did not file an appeal.
In this motion, Movant contends that he directed his trial counsel, Edward Smith ("attorney Smith") to file a notice of appeal, and attorney Smith failed to do so. Movant also contends that he should not have been sentenced under the Armed Career Criminal Act ("ACCA") because his Georgia burglary conviction is no longer a qualifying predicate offense. Movant asserts that this Court violated his right to a jury finding of the element necessary to increase his punishment beyond the statutory minimum.
The Government asserts that Movant's motion is untimely. The Government alleges that Movant's burglary conviction is a predicate offense under the ACCA, even if he had not procedurally defaulted on this claim. The Government also alleges that Movant's Sixth Amendment claim is without merit.
DISCUSSION AND CITATION TO AUTHORITY
I. Whether attorney Smith rendered ineffective assistance of counsel regarding an appeal
Movant contends that he informed attorney Smith that he wanted to file an appeal, but he learned in October 2013 that no appeal was pending. Movant asserts that he discussed with attorney Smith the possibilities for success on appeal and that attorney Smith told him there was no need to file an appeal because it would be useless. Movant also asserts that he told attorney Smith that his life was on the line, and he was the one who had to serve time. Movant alleges that he had no idea an appeal had not been filed and only learned of this by contacting the Court. Movant avers that he attempted to contact attorney Smith but was unsuccessful. The Government alleges that attorney Smith's testimony at the evidentiary hearing reveals that Movant did not ask or direct attorney Smith to file an appeal on his behalf. Criminal defendants have a right to effective assistance of counsel. Strickland v. Washington , 466 U.S. 668 (1984). To prevail on a claim of ineffective assistance of counsel, the defendant must demonstrate (1) his counsel's performance was deficient, i.e., the performance fell below an objective standard of reasonableness, and (2) he suffered prejudice as a result of that deficient performance. Id . at 685-86. The deficient performance requirement concerns "whether counsel's advice was within the range of competence demanded of attorneys in criminal cases." Hill, 474 U.S. at 56. There is a strong presumption that counsel's conduct fell within the range of reasonable professional assistance. Davis v. United States, 404 F.Appx. 336, 337 (11th Cir. 2010) (citing Strickland , 466 U.S. at 686).
A defendant can file a direct appeal of his federal conviction as a matter of right. Thompson v. United States , 504 F.3d 1203, 1206-07 (11th Cir. 2007). A "lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable." Roe v. Flores-Ortega , 528 U.S. 470, 477 (2000). The Eleventh Circuit Court of Appeals "has interpreted Flores-Ortega to mean that it is per se unreasonable to fail to follow a client's explicit request to file an appeal." Gomez-Diaz v. United States , 433 F.3d 788, 791-92 (11th Cir. 2005). Even if a client has not made a specific request of his attorney to file an appeal, counsel has a constitutionally-imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal..., or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing." Flores-Ortega , 528 U.S. at 480. Factors used "in determining whether a rational defendant would want to appeal include whether the conviction follows a guilty plea, whether the defendant received the sentence bargained for as part of a plea agreement, whether the plea agreement waived appellate rights, and whether there are nonfrivolous grounds for appeal." Fields v. United States, No. 12-15784, 2014 WL 4056302, at *3 (11th Cir. Aug. 18, 2014) (citing Otero v. United States , 499 F.3d 1267, 1270 (11th Cir. 2007)).
The denial of counsel on appeal, and more seriously, the denial of an appeal altogether as a result of ineffective assistance of counsel, deprive the accused of counsel at a "critical stage" and therefore carry a presumption of prejudice. Id . at 483. However, "counsel's deficient performance must actually cause the forfeiture of the defendant's appeal." Id . at 484. Thus, to invoke the presumption of prejudice, "a defendant must demonstrate that there is a reasonable probability that, but for counsel's deficient failure to consult with him about an appeal, he would have timely appealed." Id . When counsel's constitutionally deficient performance deprives a defendant of an appeal that he otherwise would have taken, the defendant has made out a successful ineffective assistance of counsel claim entitling him to an appeal." Id . A pro se defendant is not required to show that his appeal has any arguably meritorious grounds for appeal; all that is required is for the "defendant to demonstrate that, but for counsel's deficient conduct, he would have appealed." Ashcraft v. Sec'y, Fla. Dep't of Corr., 340 F.Appx. 600, 602 (11th Cir. 2009). "The duty to consult includes two obligations: to advise the client about the advantages and disadvantages of taking an appeal, ' and to make a reasonable effort to discover' whether the client wants to appeal." Baughman v. United States, 319 F.Appx. 866, 869 (11th Cir. 2009) (internal citation omitted).
Attorney Smith testified that Movant was facing a minimum sentence of fifteen (15) years' imprisonment because he was going to be classified as an armed career criminal. (Doc. No. 12, p. 5). Movant ultimately received a sentence of around fourteen (14) years' imprisonment (170 months) after he cooperated with the Government by providing information which assisted in other criminal matters. Attorney Smith testified that he met with Movant approximately 15 times throughout the course of the criminal prosecution, and they "got to know each other pretty well." (Id. at p. 9). Attorney Smith stated that he and Movant discussed the possibility of appealing Movant's sentence on the date of the sentencing. Attorney Smith testified that he asked Movant, "What do you want to do? We have limited time. Do you want me to appeal it? What do you want me to do?". (Id.) Attorney Smith also testified that Movant replied, "Don't worry, Mr. Smith... I'm a convict. I'm not an inmate. This is my retirement. I've never been to federal prison. It'll be meat on the bone, " and laughed. (Id. Attorney Smith declared that he took Movant's response to mean that he did not want him to file an appeal, even though Movant did not specifically use those words. Attorney Smith testified that he told Movant to contact him with any questions. Attorney Smith stated that he did not hear from Movant within thirty (30) days after sentencing regarding an appeal, and the first time he heard from Movant after sentencing was on June 5, 2013. (Id. at p. 10). Attorney Smith stated that he spoke to Movant, and Movant wanted copies of every document from the criminal proceedings attorney Smith had. Attorney Smith testified that he had a letter dated June 7, 2013, which indicated that his secretary sent Movant these copies on that date. (Id.). Attorney Smith also testified that Movant did not ask him to file an appeal or ask about the status of an appeal at this time. (Id. at p. 11). However, attorney Smith stated that he did not see any reason to file an appeal, as it did not look like an appeal would have gone anywhere.
On cross-examination, attorney Smith declared that, although he had nothing documenting Movant's failure to ask him to file an appeal, he (attorney Smith) did not "recall him ever saying anything about filing an appeal." (Id. at p. 20). Attorney Smith stated that he would have remembered if Movant had asked for an appeal because of the limited time period available in which to file an appeal. Attorney Smith also stated that he remembered the conversation he had with Movant after sentencing better than he would have ordinarily remembered a conversation because he was "floored" by Movant's comments. (Id. at p. 21). Attorney Smith further stated that he told Movant if he changed his mind about filing an appeal or if he needed attorney Smith, to contact him. Attorney Smith continued by stating that he took Movant's comments to mean that he was okay with his sentence and did not want to appeal it. Attorney Smith testified that he told Movant that he would have to let attorney Smith know something "pretty quick  "(sic), presumably because of the limited time available for the filing of an appeal. (Id. Attorney Smith declared that his understanding is "that if [he doesn't] see any grounds for appeal and my client doesn't indicate that he wants to appeal, that I don't file an appeal at that point. I didn't see any reason to file an appeal." (Id. at p. 25).
In contrast, Movant testified that he told attorney Smith to file an appeal because he thought the sentence he received was unfair. (Id. at pp. 33-34). Movant also testified that he "really did" believe that attorney Smith filed an appeal on his behalf. (Id. at p. 34). Movant stated that he began speaking with fellow inmates while he was housed at the Federal Correctional Institution in Estill, South Carolina, one of whom encouraged him to contact attorney Smith after learning when Movant was sentenced. Movant declared that he contacted attorney Smith, who told Movant that he (attorney Smith) was "through with" his case. (Id. p. 35). Movant also declared that he asked attorney Smith to send him his documents. Movant further declared that he found it difficult to get in touch with attorney Smith, which delayed his receipt of his documents. Movant testified that he received his documents in November 2013, and it was around that time he learned that no appeal had been filed.
The undersigned finds the testimony given by attorney Smith at the evidentiary hearing more credible than that given by Movant. Davis v. United States, 404 F.Appx. 336, 338 (11th Cir. 2010) (stating that the determination of the credibility of a testifying attorney during an evidentiary hearing on an ineffective assistance claim is within the province of the district court, which has the opportunity to observe and study the witness). The undersigned finds that Movant advised attorney Smith that he did not want to file an appeal, particularly in light of attorney Smith's testimony that his conversation with Movant after sentencing stood out in his mind because he thought Movant's comments were unusual. In addition, Movant was unable to pinpoint an exact time period for when he learned no appeal had been filed, and instead, he has identified several different times as being when he learned he did not have a pending appeal. Next, it must be determined whether a "reasonable defendant" in Movant's place would have wanted to file an appeal.
The two most relevant factors to consider in this determination is that Movant pled guilty to the charged offense and that he actually received a more favorable sentence than for what he bargained. Movant entered into a plea agreement with the Government. As part of this agreement, Movant was notified that his penalty for pleading guilty to the charge of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), would be "not less than 15 years['] imprisonment[ ]" because he had "3 qualifying convictions[.]" (CR 510-22, Doc. No. 50, p. 1). Movant was also notified that the United States Probation Office would prepare a Pre-sentence Investigation Report ("PSI"), which would include Movant's criminal history, for the Court's consideration during sentencing. (Id. at p. 6). Judge Moore informed Movant during his Rule 11, or change of plea hearing, that it was a possibility "if you plead guilty today you are going to forever lose your right to complain on appeal about any action of the government, any government agent, prosecutor, the Magistrate judge, your own lawyer, this Court, or anyone else as far as any complaint that you have about anything that you say they did or failed to do in your case." (Id. at Doc. No. 72, pp. 10-11). Movant told Judge Moore that he understood. Judge Moore noted the charge against Movant and that, by pleading guilty, he faced, "as a person with three qualifying convictions", "a sentence of not less than 15 years of imprisonment[.]" (Id. at p. 14). Movant told Judge Moore that attorney Smith told him that he faced "15 years to life." (Id.). Judge Moore explained to Movant that the Sentencing Guidelines are advisory in nature and that, even if the sentence he received were more than he or attorney Smith anticipated, Movant was bound by his plea agreement. Movant told Judge Moore that, other than what was contained in the plea agreement, he had no promises made to him and that attorney Smith did not tell him the exact sentence which would be imposed. (Id. at pp. 18-19). Judge Moore found that Movant's guilty ...